Retroactivity issue stalls juvenile lifer bills

Sunday

Sep 8, 2013 at 1:35 AM

More than a year after the U.S. Supreme struck down mandatory life-without-parole sentences for juveniles, Michigan lawmakers attempting to bring the state into compliance have hit a potential stalemate that threatens to derail any progress.

AP

More than a year after the U.S. Supreme struck down mandatory life-without-parole sentences for juveniles, Michigan lawmakers attempting to bring the state into compliance have hit a potential stalemate that threatens to derail any progress.

The sticking point: Does the decision apply retroactively to the 360 or so inmates who were under 18 when they committed crimes, mostly murder?

A group of Republican and Democratic legislators says prisoners should get new sentences, especially more than 100 who had lesser roles in a killing but still were given life with no possibility of parole. Prosecutors, led by Republican Attorney General Bill Schuette, contend the ruling only applies to new defendants.

The tension-filled issue could heat up in the Capitol this fall, as shown by a recent packed legislative hearing that also filled two overflow rooms. It was the first hearing on bipartisan bills that would prospectively overhaul sentencing rules for defendants under 18 charged with murder and give current inmates a chance at release in the future.

"I'm not suggesting that these men and women should be set free. I'm suggesting that a small number of them may someday deserve a second look," said Rep. Joe Haveman, a Holland Republican and a lead sponsor of the legislation.

Michigan is home to the second-highest number of juvenile lifers in the U.S.

The bills would eliminate mandatory no-parole sentences for juveniles in new cases. They could still get life with no possibility of release, but it would not be mandated.

For juvenile lifers now behind bars, a mechanism for resentencing hearings would be created so prosecutors could still seek life with no parole. Under an agreement being worked out among negotiators that has not been added to the legislation yet, the prisoners could ask for a term of years, with a minimum potentially ranging from 20 to 40 years and the maximum no lower than 60 years.

Juveniles resentenced to a term of years could be eligible for parole after 15 years, though that provision remains subject to revision. Going forward, they would be guaranteed interviews with the parole board every two years instead of file reviews.

The board also would have to consider certain factors for juvenile lifers such as peer pressure, their age at the time of the offense, their family and home environment, and whether they could have been convicted of a lesser offense if not for teen offenders' tendency to make poor choices regarding defense strategies.

The highest-profile and most emotional issue for now is retroactivity. The Supreme Court's June 2012 decision — based on the Constitution's Eighth Amendment prohibition against cruel and unusual punishment — is silent on the issue, and courts across the country have been divided ever since on whether it should be applied retroactively.

Schuette is urging lawmakers to back off from the retroactivity issue until the Supreme Court considers it, which he estimates could take two or three years.

"Do family members whose son or daughter or husband or wife have to reopen the wounds and go back to court to relive and once again relate the brutal circumstance of their murdered family member? That's the unanswered question," he said.

In January, U.S. District Judge John Corbett O'Meara declared that the Miller v. Alabama ruling applies retroactively in Michigan. The decision conflicted with a decision last fall by the state appeals court, which said most people already behind bars would not benefit.

Schuette's stance has drawn criticism from the American Civil Liberties Union of Michigan and others who say it makes no sense that some mandatory life sentences be unconstitutional while others are not. Some are not convinced the high court will visit the retroactivity issue as more states address it on their own.

"If it doesn't apply retroactively, we know there's going to be lawsuit after lawsuit after lawsuit," ACLU lobbyist Shelli Weisberg said. "Very few people want to continue litigating this and legislating this for the next 10 years."

She said most lawmakers she talks to agree the legislation should apply retroactively. Weisberg stressed that even if juvenile lifers become eligible for parole, they could have a very tough time winning their release from the parole board.

Steven Babcock, of Davison, whose 24-year-old daughter Trisha was killed by a 12-year-old during a 2009 carjacking in Detroit, opposes the bills. But he said if legislators decide to pass them they should make sure prisoners sentenced as juveniles are not eligible for parole for 35 to 50 years.

"My daughter will never be given a second chance," he said. "She's dead, she's buried in a cemetery. I don't feel that anyone convicted of ... murder should ever be given a second chance. You need to pay your debt to society."